Habsburg Law - Second Republic

Second Republic

In 1945, the Second Republic brought into force again the Constitution of 1920/1929 according to its version as of 1933, and with it automatically also the Habsburg Law of 1919. With the Constitution Transition Law, all constitutional laws enacted between 1933 and 1945, and all laws which were not compatible with the constitution that was in force until 1933, were repealed. Thus, the legal situation of the First Republic was restored.

The expropriation that occurred in 1939 could not be contested up to now, because the owner of the Habsburg property in 1938 (the fund) is not stated after 1945 in the Foundation and Fund Reorganization Law as a reestablishable fund, so that it could not be established again, and because according to various judgments of the Supreme Court individual members of the family have no claim. Only the not reestablishable fund would have a claim. In 1955, at the explicit request of the USSR the Habsburg law became part of the Austrian State Treaty.

The Republic of Austria made reservations to numerous international agreements after 1945 (convention of human rights, anti-discrimination arrangement, etc.), so that these agreements are not in full validity in relation on the members of the Habsburg family in Austria.

From 1960 many members of the House Habsburg-Lorraine signed the waiver. In 1961 it was also signed by the head of the family Archduke Otto von Habsburg. His entry was delayed until 1966 by the Habsburg crisis, in which the legal validity of his declaration was denied. In this connection the National Council decided to interpret the Habsburg Law authentically, with a majority of the Social Democratic Party (SPÖ) and the Austrian Freedom Party (FPÖ). Permission to enter was granted to the last empress, Zita of Bourbon-Parma, without a waiver, in 1982, because she was a Habsburg only by marriage and could therefore make no claim to the imperial throne.

Members of the Habsburg family and other families, "that have ruled before", have according to article 60, paragraph 3 of the federal constitution, the same rights and possibilities as any other Austrians, except from being unable to serve as Federal President. In 2010, Ulrich Habsburg-Lothringen, living in Carinthia, unsuccessfully tried to be accepted as a candidate at the federal president's elections. The federal government has admitted the exclusion of Habsburgs from the passive voting rights is not needed any more and could be abandoned in 2011.

However, the family continues to pursue the fight against the Habsburg law: The financial claims (including castles, apartment buildings in Vienna and about 27,000 hectares of land with an estimated total value of 200 million euros) are substantial. Till present, however, they were dismissed for technical reasons or denied, due to the decisions of the Austrian Supreme Court.

From today's view the question stays juridically open whether the expropriation provisions enacted in 1919 have fulfilled their legal purpose with the expropriation of 1919, and therefore have no more validity for further events (juridically: are consumed), or whether they imply a permanent ban on restitution.

In the report of the historian's committee on the property denial during the Nazi era, which has been in office in 1998-2003, a return ban was denied, while the arbitral authority of the general compensation fund saw such a return ban as evident.

The Arbitration Panel of the General Settlement Fund for Victims of National Socialism (decisions 5/2004, 6/2004, 7/2004) has declared that it lacks jurisdiction over applications of the Habsburg family, for reasons of constitutional and international law. In a subsequent complaint of the Habsburg family concerning decisions of the Arbitration Panel, the Austrian constitutional court has likewise declared that it lacks jurisdiction; the president of the constitutional court, Korinek, pointed out to the Habsburg family the possibility of a civil law claim - apparently under the fiction that the Family-Provision Fund did not cease to exist in 1938, did therefore not need to be reestablished, and still exists. The family has not sought the decision of an Austrian authority since then.